Appellee Kent Nelson Thompson was indicted by a federal grand jury on
four counts of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Mr. Thompson moved to suppress evidence obtained when law
enforcement agents searched his home for a third party fugitive. After
evidentiary hearings and oral argument, the district court granted the motion. On
appeal, the government challenges this ruling. We exercise jurisdiction pursuant
to 18 U.S.C. § 3731 and affirm.

Factual Background

Federal Bureau of Investigation agents received information from a county
sheriff's deputy that Ronald Baldwin, a fugitive, was presently at a Salt Lake
City home. The agents confirmed Mr. Baldwin had outstanding arrest warrants
for violating parole supervision. Their review of Mr. Baldwin's criminal history
revealed drug offenses, parole violations, and assaults.

Two agents went to the house to gather more information. While
surveilling the house, they observed Mr. Baldwin exit the garage, walk to the
curb, and then re-enter the house. The agents also saw a man, later identified as
Mr. Thompson, leave the house.

Having confirmed Mr. Baldwin's presence at the home, eight to ten agents
set up a perimeter around the property to execute the arrest warrant and prevent
Mr. Baldwin from escaping. Shortly after their arrival, they apprehended a man
as he tried to flee the house. The man told the agents several people were still
inside and provided a phone number to the house. The agents made a number of
phone calls to the home requesting that everyone inside exit with their hands up.
Several people came out of the house, but Mr. Baldwin remained inside.

At some point during the stand-off, Mr. Thompson returned to the house.
He angrily informed the agents the house was his and asked what was happening.
Mr. Thompson indicated Mr. Baldwin was inside the home. He also said there
was a loaded .357 handgun in the vest of a jacket in the closet and a single shot
.22 caliber pistol in a large, unlocked gun safe. Mr. Thompson assisted the
agents in diagraming the layout of the house, indicating the location of the
weapons and potential hiding places large enough for a person. The agents did
not obtain Mr. Thompson's permission to search the house, nor did they get a
search warrant for the house. At this point, none of the agents knew Mr.
Thompson was a felon.

About two hours after setting up the perimeter, the agents called a special
weapons and tactics team. The agents called the team because Mr. Baldwin had a
dangerous criminal history, had access to firearms, and was barricaded inside the
house.

Using the information Mr. Thompson provided, the special weapons and
tactics team entered the house. In the basement, they observed the large gun safe
Mr. Thompson described. The safe door was ajar. The agents opened it further
and observed firearms in the safe. The team eventually found Mr. Baldwin in the
basement, hiding in a pile of laundry.

The agents took Mr. Baldwin into custody, then re-entered the house.
They seized four firearms, including the guns in the safe and the gun Mr.
Thompson described as being in a vest pocket. They also seized ammunition and
drug paraphernalia.

Based on the firearms found in the house, a grand jury indicted Mr.
Thompson on four counts of possessing a firearm as a previously convicted felon
in violation of 18 U.S.C. § 922(g)(1). Each count involved a separate firearm.

After briefing by
the parties and evidentiary hearings, the district court granted Mr. Thompson's
motion. In pertinent part, the court held the plain view doctrine, allowing a
limited warrantless seizure, did not apply because the incriminating character of
the firearms was not immediately apparent to the agents. The court also held no
exigent circumstances justified the agents' second entry into the house and
seizure of the firearms after Mr. Baldwin was in custody.

The government appeals the district court's suppression of the firearms,
arguing the search and seizure were permissible under the plain view doctrine
because the criminal nature of the firearms was readily apparent. Alternatively,
the government claims the agents could seize the firearms during their protective
sweep of the house.

Discussion

"On appeal of a motion to suppress, we accept the district court's factual
findings unless clearly erroneous and view the evidence in the light most
favorable to the prevailing party, here [Mr. Thompson]." United States v. De la
Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998). "'A finding of fact is
"clearly erroneous" if it is without factual support in the record or if [we], after
reviewing all the evidence, [are] left with a definite and firm conviction'" the
district court erred. Manning v. United States, 146 F.3d 808, 812 (10th Cir.
1998) (quoting Cowles v. Dow Keith Oil & Gas, Inc., 752 F.2d 508, 511 (10th
Cir. 1985), cert. denied, 479 U.S. 816 (1986)). We review legal questions, such
as "[t]he ultimate determination of reasonableness under the Fourth
Amendment[,] ... de novo, considering the totality of the circumstances." United
States v. Dickerson, 195 F.3d 1183, 1186 (10th Cir. 1999). See also United
States v. Holt, 264 F.3d 1215, 1228 (10th Cir. 2001) (en banc).

Plain View Doctrine

The government argues the agents did not violate the Fourth Amendment
in seizing the firearms. It believes the agents properly seized the firearms under
the plain view doctrine because the criminal nature of the firearms was readily
apparent. It claims the record shows "[o]fficers could reasonably infer that [Mr.]
Baldwin knowingly had access to and joint and constructive possession of the
firearms." Thus, the government believes the district court should not have
suppressed the firearms.

In ruling on the motion to suppress, the district court rejected the
government's plain view theory of this case. The court found "no evidence that
[Mr.] Baldwin ever possessed any of the [firearms]." Thus, the court concluded
there "was no basis to find that the incriminating character of the guns ... was
immediately apparent." After reviewing the record, we conclude it supports the
district court's factual findings.

The Fourth Amendment guarantees "[t]he right of the people to be [free
from] unreasonable searches and seizures." U.S. Const. amend. IV. "It is a
'basic principle of Fourth Amendment law' that searches and seizures inside a
home without a warrant are presumptively unreasonable." Payton v. New York,
445 U.S. 573, 586 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443,
474-75, 477-78 (1971)). Agents may, however, seize evidence without a warrant
if it is in "plain view." Coolidge, 403 U.S. at 465. An object is in plain view if:
(1) "the officer did not violate the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed"; (2) the item's "incriminating
character [was] immediately apparent"; and (3) the officer had "a lawful right of
access to the object itself." Horton v. California, 496 U.S. 128, 136-37 (1990).
In this instance, we need not address all three factors of the plain view analysis
because we conclude the criminal nature of the firearms was not immediately
apparent. See id. (holding all three conditions must be present to justify a
warrantless seizure under the plain view doctrine).(2)

"An item's incriminating nature is immediately apparent if the officer had
probable cause to believe the object was contraband or evidence of a crime."
United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002) (quotation
marks and citations omitted). "A seizing officer need not know or have an
unduly high degree of certainty as to the incriminatory character of the evidence
under the plain view doctrine. All that is required is a practical, nontechnical
probability that incriminating evidence is involved." Id. (quotation marks and
citations omitted).

The government argues the agents had probable cause to believe Mr.
Baldwin, as a known felon and fugitive, constructively possessed the firearms.
See 18 U.S.C. § 922(g)(1) and (2) (prohibiting a felon or fugitive from
possessing firearms). In this case, it is clear Mr. Baldwin was a known felon and
fugitive. Thus, the question is whether the agents could reasonably believe Mr.
Baldwin constructively possessed the weapons.

A person has constructive possession of a firearm if he "knowingly holds
the power to exercise dominion or control over the firearm." United States v.
Heckard, 238 F.3d 1222, 1228 (10th Cir. 2001) (citing United States v. Mills,
29
F.3d 545, 549 (10th Cir. 1994)). "[W]here there is evidence of joint occupancy
[of the area where agents found a weapon], the Government must offer 'evidence
supporting at least a plausible inference that the [person] had knowledge of and
access to the weapon.'" United States v. Hein Van Tieu, 279 F.3d 917, 922 (10th
Cir. 2002) (quoting Heckard, 238 F.3d at 1228).

Here, the government argues the agents "could reasonably infer" Mr.
Baldwin had knowledge of and access to the firearms. With respect to Mr.
Baldwin's access to the firearms, one agent testified Mr. Thompson said Mr.
Baldwin had access to the firearms. Based, in part, on this testimony, the district
court concluded Mr. Baldwin had access to the firearms in the house. On appeal,
Mr. Thompson does not dispute this factual finding. Access alone, however, is
not enough to establish constructive possession. See Mills, 29 F.3d at 550. We
must ask whether there is "evidence to support an inference that [Mr. Baldwin]
was aware of the firearms contained in the [house]." Id. The government directs
us to several facts it claims support the inference Mr. Baldwin had knowledge of
the firearms. We address each of these facts in turn.

First, the government points to one agent's testimony stating he "received
information ... the fugitive knew that there was a firearm inside the house."
However, this agent was positioned on the south and west sides of the house and
did not directly speak with Mr. Thompson, who had informed the agents about
the firearms in the house. Instead, he received the information about the firearms
from another officer at the scene via radio or cellular telephone. In addition to
this agent's testimony, the district court heard from the agent who interviewed
Mr. Thompson. The interviewing agent testified Mr. Thompson told him Mr.
Baldwin had access to the firearms, but he did not mention whether Mr.
Thompson told him Mr. Baldwin knew about the firearms. Similarly, another
agent who witnessed Mr. Thompson's interview did not include anything about
Mr. Baldwin's supposed knowledge of weapons in his summary of the
conversation.(3)

Presented with the testimony of these two other agents with more
direct information, we cannot conclude the district court erred in discounting the
testimony of the agent whose only source of information was another officer. See
United States v. Fernandez, 18 F.3d 874, 876 (10th Cir. 1994) (emphasizing "the
credibility of the witnesses and the weight given to the evidence ... are matters
for the trial judge").

The government also claims the fact Mr. Baldwin was living in the house
suggests he had knowledge of the firearms. However, the district court
determined "it was not reasonable for law enforcement officers to believe that
[Mr.] Baldwin was a resident of the home."(4)

The government urges us to
overturn the district court's corresponding finding that "[n]o evidence was
offered that demonstrates [Mr.] Baldwin was a resident of the home." In
furtherance of its argument, the government points to testimony stating Mr.
Thompson told one agent Mr. Baldwin "was living there." The government also
argues the agents could infer Mr. Baldwin resided in the house from the fact
"local authorities indicated that [Mr.] Baldwin [was] at the house," and from the
fact Mr. Baldwin "remained in the house for several hours [while Mr.] Thompson
... was absent."

The record supports the district court's conclusion it was not reasonable
for agents to believe Mr. Baldwin lived at the house. For example, when asked if
he had "any real information beforehand as to who the owner [was] or who was
living [at the house]," an agent answered, "[n]o, we didn't. We just had
information that Ronald Baldwin was at that address." Similarly, when asked if
he was "able to verify who actually resided in the home," another agent testified
he received information verifying Mr. Thompson was residing at the home, but
notably did not mention having information about Mr. Baldwin residing there.
Yet another agent testified the agents knew Mr. Baldwin was "at the residence,"
making no reference to him residing there. In addition, the fact several other
individuals exited the home in response to the agents' requests casts doubt on the
government's contention it was reasonable to infer Mr. Baldwin lived at the
residence from his presence there. In light of these facts, we see no reason to
disturb the district court's conclusion it was not reasonable for the agents to
believe Mr. Baldwin lived at the house. Thus, the district court did not err in
rejecting Mr. Baldwin's alleged residency as evidence he had knowledge of the
firearm.

Finally, we are not persuaded by the government's argument Mr. Baldwin
had knowledge of the firearms because he was found in "close proximity" to
them. When a felon is found in "close proximity" to a firearm there is sufficient
evidence to establish the felon knew about the weapon and constructively
possessed it. United States v. Wright, 932 F.2d at 868, 881 (10th Cir.)
(upholding a felon in possession of a firearm conviction when agents found a
rifle within eight feet of the defendant), cert. denied, 502 U.S. 962 and 502 U.S.
972 (1991). Here, however, the record does not show agents found Mr. Baldwin
in close proximity to the weapons. Rather the testimony establishes the agents
found Mr. Baldwin in a room "in close proximity" to the room
containing the
safe. Our search of the record did not reveal any evidence Mr. Baldwin ever
occupied the room containing the safe. Further, an agent testified when they
found the safe, it was "closed to the extent that you could not see what was inside
of it." This makes it unlikely Mr. Baldwin would have known about the weapons
simply from his presence in the laundry room. Lastly, we note the district court
was in a far better position to judge Mr. Baldwin's proximity to the firearms than
we are now. It reviewed evidence not before us, including a diagram of the
house showing where agents found both Mr. Baldwin and the firearms.
Presented with this evidence, the district court nevertheless concluded there was
no evidence Mr. Baldwin possessed the firearms. On these facts, we will not
substitute our judgment for that of the district court. See Fernandez, 18 F.3d at
876.

After carefully reviewing the record and considering the evidence in the
light most favorable to Mr. Thompson, we are not left with the "definite and firm
conviction," Manning, 146 F.3d at 812 (citation omitted), the district court erred
in finding there was no evidence Mr. Baldwin possessed the firearms.
Consequently, the criminal nature of the firearms was not readily apparent. We
affirm the district court's decision the plain view doctrine did not justify the
agents' seizure of the firearms.(5)

Protective Sweep

The government next argues the agents could properly seize the firearms in
the course of a protective sweep while executing Mr. Baldwin's arrest warrant
because the firearms posed a security risk to the agents. It argues:

It is a logical, reasonable and even necessary extension of the
protective sweep doctrine that where firearms are discovered in a
residence during the execution of an arrest warrant, and while a
simultaneous protective sweep of the house for officer safety is also
underway, officers can lawfully seize any weapons and remove them
from the residence for officer safety.

The government also contends "[i]f ... the officers could have properly seized the
weapons prior to locating [Mr.] Baldwin, or at the same time they arrested him
and brought him out of the residence[,] ... there should be no constitutional
barrier to the officers prudently performing the two operations in rapid
succession." We reject these arguments.

"A 'protective sweep' is a quick and limited search of premises, incident to
an arrest and conducted to protect the safety of police officers or others."
Maryland v. Buie, 494 U.S. 325, 327 (1990). To conduct a protective sweep,
"there must be articulable facts which, taken together with the rational inferences
from those facts, would warrant a reasonably prudent officer in believing that the
area to be swept harbors an individual posing a danger to those on the arrest
scene." Id. at 334. "The sweep lasts no longer than is necessary to dispel the
reasonable suspicion of danger and in any event no longer than it takes to
complete the arrest and depart the premises." Id. at 335-36. We note "[o]fficers
of the law are not given free reign to conduct sweep searches on the pretense that
a dangerous situation might be imminent." United States v. Tabor, 722 F.2d 596,
598 (10th Cir. 1983).

After considering the record in light of the applicable law, we conclude the
agents were not conducting a protective sweep when they seized the firearms.
Assuming the agents could legitimately conduct a protective sweep of the house
while apprehending Mr. Baldwin, that sweep should have ended once the agents
had the opportunity to "complete the arrest and depart the premises." Buie, 494
U.S. at 336. Yet the record reflects the agents re-entered the house to seize the
weapons after they arrested Mr. Baldwin, removed him from the home, and took
him to an adult detention center. Consequently, it is clear the agents' seizure of
the weapons was not part of the protective sweep conducted during the execution
of Mr. Baldwin's arrest warrant.

The government nevertheless claims agents may continue a protective
sweep after the arrest if the agents reasonably believe the sweep will lessen the
danger. In support of this argument, the government cites two Tenth Circuit
cases: United States v. Flores, 149 F.3d 1272 (10th Cir. 1998), cert.
denied, 525
U.S. 1092 (1999), and United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990),
cert. denied, 502 U.S. 986 (1991). We conclude Flores and
Tisdale do not
control the outcome of the present case.

Flores is not helpful because Mr. Flores "[did] not contest the propriety of
the protective sweep." Flores, 149 F.3d at 1278. Consequently, the
Flores court
did not decide whether the sweep was proper.

Tisdale is similarly unpersuasive. In Tisdale, officers executing an
arrest
warrant conducted a protective sweep in a house after they "saw the defendant
flee out the window and heard three gunshots." Tisdale, 921 F.2d at 1097. On
appeal, the defendant argued "no reasonable person could perceive danger after
watching him flee." Id. The court held a protective sweep was not unreasonable
because "[g]iven defendant's actions and background it was not unreasonable for
[the officers] to believe that other dangerous people might be present or that
defendant would return." Id. In the case before us, the agents had no reason to
believe other dangerous people were in the house. People who exited the house
prior to Mr. Baldwin's arrest told agents "everybody [was] out of the house but
[Mr.] Baldwin." The special weapons and tactics team then entered the house to
arrest Mr. Baldwin. In looking for Mr. Baldwin, they conducted an exhaustive
search of the house, but did not find anyone other than Mr. Baldwin. They
arrested Mr. Baldwin and removed him from the premises. At this time, there
was no reason to believe any other dangerous people were inside the home.
Hence, Tisdale does not support the agents' seizure of the firearms in this case.(6)

In sum, we conclude any protective sweep incident to Mr. Baldwin's arrest,
on these facts, could not extend beyond the time the agents took Mr. Baldwin to
the adult detention center. Because we conclude the agents were not justified in
conducting a protective sweep at the time they seized the firearms, we need not
reach the question of whether agents may properly seize firearms during a
protective sweep absent application of the plain view doctrine.

Conclusion

For the foregoing reasons, we AFFIRM the district court's suppression
of
the firearms as evidence against Mr. Thompson.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. This order and judgment is not binding
precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors
the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

2. After examining the briefs and appellate
record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered
submitted without oral argument.

1. Although Mr. Thompson's motion to
suppress sought to exclude "the evidence
obtained at [the home]," the district court later clarified the motion only concerned the
guns. Likewise, this appeal and our decision only concern the admissibility of the
firearms.

2. The government also argues the agents
met the first factor necessary for a plain
vew seizure because they properly entered the house. Since we are able to reject the plain
view argument solely on the basis the criminal nature of the firearms was not readily
apparent, we offer no opinion as to whether the initial entry was proper.

3. In its reply brief, the government urges us
to find constructive possession based
on "[Mr.] Thompson's statement that [Mr.] Baldwin knew about the firearms and had
access to them." As explained above, our own review of the record reveals no evidence
Mr. Thompson ever told agents Mr. Baldwin knew about the firearms.

4. The government briefed, and the district
court considered, the issue of Mr.
Baldwin's residence in the context of whether the government's initial entry to the house
was permissible. Although our disposition of this case does not require us to address
whether the initial entry was permissible, the government referred to Mr. Baldwin's
residence in its constructive possession argument, and we therefore consider it now.

5. The government also argues "the officers
could immediately re-enter the
residence to seize firearms which had just been observed in plain view without obtaining
a search warrant." We need not address this argument because, as previously discussed,
the firearms were not in plain view when the agents entered the home.

6. The government also cites United
States v. Hernandez, 941 F.2d 133 (2d Cir.
1991), and United States v. Caraza, 843 F.2d 432 (11th Cir. 1988). These cases are
inapplicable because, like Flores, they involve factual situations where the officers
had
reason to believe other people in the house were a threat to officer safety. See
Hernandez,
941 F.2d at 135, 137 (upholding protective sweep search under a mattress when officer
intended to place handcuffed woman on the bed); Caraza, 843 F.2d at 436
(upholding
protective sweep when officer "could not be certain whether others were in the house
who might ... pose a threat to the officers").